World's first image rights register to be created

The issue of personality rights is gaining some attention at present due to the introduction of ground-breaking legislation in the Bailiwick of Guernsey. Under the new Image Rights (Bailiwick of Guernsey Ordinance 2012), the world’s first image rights register will be created, thus providing for the registration of a person’s personality (eg, their name, voice and likeness) and image. Under the new legislation, a register similar to trademark registers will be created providing for the registration of a person’s personality for 10 years, which can be renewed for further periods of 10 years in perpetuity. In addition, individual images can also be registered and renewed for periods of three years.

Although the legislation is the first of its kind in the world, it is not the first time that the issue of publicity rights has been discussed. Debates as to the merits of recognising the right at all, as well as questions as to the manner in which the right should be treated, have indicated an apparent difference of opinion among academics and legislators alike.

For example, the issue of publicity rights has proved a matter of inconsistency in the United States, with only a number of states formally recognising the right. Even among the few states that do recognise the right, there is much disparity as to the manner and method in which the right is treated.

In the English and Irish courts, the matter is yet to be directly addressed. The right of publicity has often been described as the other side of the privacy coin and, as such, has been treated in the same manner. However, historically, the English courts have been reluctant to recognise or introduce a blockbuster tort of privacy for fear of definitional difficulties and conceptual problems in developing the tort. However, the enactment of the Human Rights Act 1998 incorporated the European Convention of Human Rights into English law, thus expressly protecting the right to privacy in England. While the right to privacy is therefore a relatively new tort in England, the flip side of the privacy coin is yet to be formally addressed. Rather than formally recognising the right to publicity, the English courts, when faced with potential publicity rights cases, have tended to pigeonhole the right under an already existing tort such as passing off, breach of confidence or privacy.

The issue of privacy in Ireland has proved the topic of debate for a number of years, particularly following the introduction of the Privacy Bill 2006, which to date has not been passed into law. This bill seeks to introduce an actionable tort of privacy into Irish law; however, the bill is proving to be a contentious issue. Nonetheless, it is noteworthy that this bill incorporates the issue of publicity rights, thus affirming the contention that the right of publicity is the other side of the privacy coin.

The inclusion of publicity rights in the Privacy Bill indicates the intended direction and treatment of the right under Irish law. Being incorporated into this bill, the right of publicity is clearly seen as a personal right by the legislators, however, the treatment of the right of publicity as a personal right may create some interesting issues for the courts.

As is well established, the fundamental characteristic of personal rights is that they are inalienable and cannot be sold or assigned. Such limitations, if applied to the right of publicity, are contrary to the reality of the celebrity endorsement culture, which has expanded into a multi-million euro industry over the past two decades. The success and fame of persons such as pop stars and sports stars has resulted in an increased demand for the use of their name, image or likeness in order to add value to products and services. In return, this has led to an increase in the pecuniary value of the personalities as the practice of celebrity endorsements has become a lucrative industry, not just for the companies using the images but also for the celebrities themselves, some of who earn more through endorsement deals than they do from their primary activity. Therefore, treating the right of publicity as a personal inalienable right is entirely contradictory to the realities of modern life and commerce.

The innovative legislation of Guernsey, however, clearly recognises the right of publicity as a property right, in line with other forms of intellectual property, borrowing as it does elements of trademark and copyright law. As a result, the rights extending from protection under the Guernsey legislation can easily be sold, licensed or assigned to third parties. In addition, the estate of a deceased person can also avail of the new registration system, providing the person has not been dead for more than 100 years.

More controversially, however, the legislation also allows the registered personality or image rights to be passed down in a will, an issue which has caused some debate, particularly in the United States, where it is argued that allowing a personality or image to be passed down effectively deprives society of a social reference, as the images are taken out of the public domain forever.

Whether a similar approach will be adopted in England and Ireland is questionable; however, if Guernsey’s new image rights legislation proves successful, it will be hard to justify not following suit.

Shauna Tilley, FRKelly, Dublin